IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs March 2, 2022

IN RE GRACELYN H. ET AL.

Appeal from the Juvenile Court for Crockett County

No. 2019-DN-13 Paul B. Conley, III, Judge

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No. W2021-00141-COA-R3-JV

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A grandfather commenced this action for grandparent visitation after his daughter and two 

granddaughters moved out of his house. While the action was pending, the trial court 

entered an agreed order that granted temporary visitation to the grandfather. When the 

mother refused to comply with the agreed order, the grandfather filed a motion for civil 

contempt. Following several delays, the petition for grandparent visitation and the motion 

for contempt came on for hearing on the same day. After the final hearing, the trial court 

denied both the petition for grandparent visitation and the motion for civil contempt. The 

court found that the grandfather failed to prove that losing his relationship with the children 

would create a risk of substantial harm to the children. The court also found that the 

mother’s failure to comply with the agreed order was not willful because she had been 

coerced into the agreement by her former attorney. This appeal followed. We affirm the 

dismissal of the petition for grandparent visitation. With regard to the motion for civil 

contempt, we find the issue is moot because the grandfather no longer had any right to 

visitation after this petition was dismissed. Thus, the contempt issue is pretermitted on the 

basis of mootness.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which KRISTI M.

DAVIS and CARMA DENNIS MCGEE, JJ., joined.

Will T. Hughes, Alamo, Tennessee, for the appellant, Melvin W.1

Tucker H., Obion, Tennessee, appellee, pro se.

 

1 This court has a policy of protecting the identity of children by initializing the last name of the 

parties.

04/04/2022
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Andrea D. Sipes, Jackson, Tennessee, for the appellees, Austin C. and Candace H.

Kelly F. Tomlinson, Brownsville, Tennessee, guardian ad litem for the minor children, 

Gracelyn H. and Cora H.

OPINION

FACTS AND PROCEDURAL BACKGROUND

Gracelyn and Cora H. (“the Children”) were born in June 2013 and April 2017, 

respectively, to Candace H. (“Mother”). The Children would often visit the home of their 

maternal grandfather, Melvin W. (“Grandfather”), and they moved into his house with 

Mother in August 2019. The stay was short-lived, however, as Mother and Grandfather 

often disagreed about how the Children should be cared for. 

Mother and the Children last moved out of Grandfather’s house in October 2019, 

after which Mother cut off all contact with Grandfather.

One month later, in November 2019, Grandfather filed a Petition for Emergency 

and Temporary Custody of Dependent and Neglected Children against Mother and the 

Children’s fathers, Austin C. and Tucker H.2 Grandfather subsequently amended his 

petition to seek grandparent visitation under Tennessee’s Grandparent Visitation Statute, 

Tennessee Code Annotated § 36-6-306, and dismissed his dependent and neglect petition.

While the action was pending, the trial court approved an agreed order for temporary 

visitation under which Grandfather would visit with the older grandchild, Gracelyn, every 

Saturday from 10:00 a.m. to 6:00 p.m. Mother, however, refused to comply with the order, 

and Grandfather filed a motion for civil contempt. Because of several procedural delays, 

the Motion for Civil Contempt was not heard until the day of the final hearing for 

Grandfather’s Petition for Grandparent Visitation, December 18, 2020.

At the outset of the hearing, Mother stipulated that she did not comply with the 

Agreed Order. The parties also stipulated that Grandfather had a “significant existing 

relationship” with the Children before October 2019, and that Mother opposed visitation. 

Thus, the only issues pertaining to visitation were whether the cessation of the relationship 

between Grandfather and the Children was likely to cause “substantial harm” to the 

Children as required by Tennessee Code Annotated § 36-6-306(b)(1) and, if so, whether 

visitation was in the Children’s best interests.

 

2 Austin C. is the biological father of Cora H., and Tucker H. is the biological father of Gracelyn 

H. Both fathers were served with process, however, Tucker H. did not make an appearance or participate 

in the action.
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The trial court heard testimony from several witnesses, including Mother;

Grandfather; Grandfather’s girlfriend, Joy C.; Grandfather’s brother, Kermit W.; and 

Cora’s father, Austin C. Grandfather testified that he used to see the Children “all the time” 

and that they were “very close” to him. Grandfather described his house as full of toys and 

games that the Children loved to play with, and he said that the Children would always cry 

whenever they had to leave. Grandfather also testified that Gracelyn asked for him after 

having a medical procedure and wanted to go to his house from the hospital. Grandfather 

believed that the girls loved him and that severing their relationship with him would harm 

them emotionally.

Grandfather’s testimony was generally corroborated by his girlfriend, Joy C., and 

his brother, Kermit W. Both Joy C. and Kermit W. testified that Grandfather had a close 

relationship with the Children before Mother cut off contact. Joy C.—who also worked at 

Gracelyn’s school—stated that Gracelyn acted differently around her after moving out of 

Grandfather’s house. Joy C. stated that, once, Gracelyn was unusually reserved and acted

as if she were not supposed to see Joy C. Joy C. also stated that Gracelyn was not eating 

much food from the cafeteria for lunch, but admitted that Gracelyn’s behavior was only “a 

little” different than before, and she said that Gracelyn had been “smiling and laughing and 

talking” at school.

Cora’s father, Austin C., characterized Grandfather’s house as essentially a “large 

playhouse.” He believed that a lack of structure at Grandfather’s house created behavior 

problems in the Children. Austin stated the Children were behaving better at home and 

school now that they did not see Grandfather. He also testified that Gracelyn had not asked 

for or even mentioned Grandfather since she stopped seeing him, and that Cora was too 

young to ask about Grandfather.

Mother testified that the Children were doing well and had not asked for Grandfather 

since they left his house in October 2019. Mother also stated that the Children were doing 

better now that they were not exposed to arguments between Mother and Grandfather. She 

explained that Gracelyn used to have nightmares but now sleeps through the night. Mother 

said that one reason she did not take Gracelyn to the agreed-upon visitation was that 

Gracelyn did not want to see Grandfather. Mother also asserted that she was forced to agree 

to the temporary visitation order by her former attorney, who withdrew as counsel soon 

after.

In its final order entered on January 8, 2021, the court found that Grandfather offered 

no proof that the Children suffered or were suffering “substantial harm” by being denied 

contact with him. The court noted that the only evidence about the Children’s welfare 

established that they “were doing well at home and in school, and had suffered no ill 

effects.” Thus, the court found it was unnecessary to address whether visitation would be 

in the Children’s best interests. As for the Motion for Contempt, the court credited 

Mother’s testimony and found that her failure to comply with the Agreed Order was not 
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willful. Thus, the trial court denied Grandfather’s Motion for Contempt and dismissed his 

Petition for Grandparent Visitation.

This appeal followed.

ISSUES

Plaintiff raises three issues on appeal:

I. Whether the trial court erred by finding that the facts would not lead a 

reasonable person to believe that the loss or severe reduction of the 

relationship between Grandfather and the Children is likely to occasion 

severe emotional harm to the Children or present the danger of other 

direct and substantial harm to them?

II. Whether the trial court erred by finding that Mother was not in civil 

contempt of an agreed order of visitation that was entered by the trial 

court prior to the hearing?

III. Whether the trial court erred by applying the wrong burden of proof and 

standard to modify an agreed order of visitation?

STANDARD OF REVIEW

“In all actions tried upon the facts without a jury, the court shall find the facts 

specially and shall state separately its conclusions of law and direct the entry of the 

appropriate judgment.” Tenn. R. Civ. P. 52.01. If the trial court makes the required findings 

of fact, “appellate courts review the trial court’s factual findings de novo upon the record, 

accompanied by a presumption of the correctness of the findings, unless the preponderance 

of the evidence is otherwise.” Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014); see Tenn. 

R. App. P. 13(d). In doing so, we give great weight to a trial court’s determinations of 

credibility. See Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997). “For the 

evidence to preponderate against a trial court’s finding of fact, it must support another 

finding of fact with greater convincing effect.” State ex rel. Flowers v. Tennessee Trucking 

Ass’n Self Ins. Grp. Trust, 209 S.W.3d 595, 599 (Tenn. Ct. App. 2006) (citations omitted).

Our review of a trial court’s determinations on issues of law is de novo, with no 

presumption of correctness. See Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 895 (Tenn. 

2011).
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ANALYSIS

I. DANGER OF SUBSTANTIAL HARM

Grandfather contends that the trial court erred in finding that the severance of his 

relationship with the Children did not create a danger of substantial harm to the Children.

To obtain court-ordered visitation with a grandchild, a grandparent must prove—as 

a threshold matter—“that the child will be in danger of substantial harm if visitation is not 

ordered.” McGarity v. Jerrolds, 429 S.W.3d 562, 570 (Tenn. Ct. App. 2013) (citing Hawk 

v. Hawk, 855 S.W.2d 573, 581 (Tenn. 1993); Tenn. Code Ann. § 36-6-306(b)(1)). This is 

because parents have a fundamental right to raise their children as they see fit. See Troxel 

v. Granville, 530 U.S. 57, 65 (2000) (recognizing that the U.S. Constitution gives parents 

the right to make decisions on the care, custody, and control of a child). “Absent substantial 

harm to the child, a trial court lacks a sufficiently compelling justification for interfering 

with the parents’ privacy rights by ordering grandparent visitation.” Coleman v. Olson, 551 

S.W.3d 686, 698 (Tenn. 2018).

Under Tennessee’s Grandparent Visitation Statute, Tennessee Code Annotated § 

36-6-306, a grandparent may prove a danger of substantial harm by showing that the child 

had a significant existing relationship with the grandparent and that the loss or reduction 

of the relationship is likely to cause severe emotional or other substantial harm:

[A] finding of substantial harm may be based upon cessation or severe 

reduction of the relationship between an unmarried minor child and the 

child’s grandparent if the court determines, upon proper proof, that:

(A) The child had such a significant existing relationship with the 

grandparent that loss or severe reduction of the relationship is likely 

to occasion severe emotional harm to the child; [or]

. . .

(C) The child had a significant existing relationship with the grandparent

and loss or severe reduction of the relationship presents the danger of 

other direct and substantial harm to the child.

Tenn. Code Ann. § 36-6-306(b)(1).3 No expert proof is necessary; instead, courts must 

“consider whether the facts of the particular case would lead a reasonable person to believe 

 

3 Grandparents may also establish significant harm by showing that “[t]he grandparent functioned 

as a primary caregiver such that cessation or severe reduction of the relationship could interrupt provision 
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that there is a significant existing relationship between the grandparent and grandchild or 

that the loss or severe reduction of the relationship is likely to occasion severe emotional 

harm to the child.” Id. § 306(b)(3).

Mother stipulated that Grandfather had “a significant existing relationship” with the 

Children, and Grandfather relies on three pieces of evidence to establish that losing the

relationship is likely to cause the Children substantial harm. First, Grandfather points to 

evidence that he and the Children had a loving relationship before his contact was cut off. 

Second, Grandfather cites evidence that—since his visitation was cut off—the Children 

“do not ask for [him], do not want to see him, and . . . don’t miss him.” Third, Grandfather

references Joy C.’s testimony that Gracelyn “began to act suspicious around [Joy C.]” and 

“was not eating a[t] school” after moving out of Grandfather’s house.

Grandfather contends these facts are analogous to those in Angel v. Nixon, No. 

M2010-00554-COA-R3-CV, 2010 WL 4483915 (Tenn. Ct. App. Nov. 8, 2010). In Angel, 

we affirmed the trial court’s finding that a danger of substantial harm existed based on 

evidence that the child’s attitude toward the grandmother soured after the child stopped 

seeing her. Id. at *4–5. Before being separated, the child had a “warm and loving 

relationship with [the grandmother].” Id. at *4. But after being separated, the child called 

the grandmother “mean” and did not “warm up to her” during visits. Id. The trial court 

determined that the separation created a danger of substantial harm to the child because the 

separation could create “feelings of abandonment and depriv[e] him of his right to learn 

about his heritage and the people who love and cared for him when he was young.” Id. The 

court also found that the mother’s resentment and anger toward the grandmother would 

force the child to be deceptive if he pursued a relationship with the grandmother when he 

was older. Id.

This case, however, differs from Angel because the grandmother in Angel was the 

child’s paternal grandmother, and the child’s father had recently died. Id. at *1. Before the 

father’s death, the child attended weekly gatherings with his father’s family. Id. But after 

the father died, the mother made “numerous attempts to frustrate any contact between [the] 

child and the family.” Id. at *2. Thus, the trial court’s ruling reflected a particular concern 

for the child’s connection to his father’s family—from whom the child would otherwise

have been estranged. See id. at *4.4 The facts in this case do not invoke the same concerns.

 

of the daily needs of the child and thus occasion physical or emotional harm.” Tenn. Code Ann. § 36-6-

306(b)(1)(B). In this case, however, Grandfather does not contend that he functioned as a primary caregiver.

4 Shortly after the trial court’s decision in Angel, the Tennessee General Assembly amended the 

Grandparent Visitation Statute to provide a rebuttable presumption of substantial harm when “the child’s 

parent is deceased, and the grandparent seeking visitation is the parent of that deceased parent.” See Act of 

May 6, 2010, ch. 957, § 1, 2010 Tenn. Pub. Acts 482, 482 (codified at Tenn. Code Ann. § 36-6-306(b)(4)).
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Here, Mother cut off the Children’s contact with her own father. As a consequence, 

Grandfather’s reliance on Angel is misplaced.

As the petitioner in a grandparent visitation proceeding, Grandfather bears a “high 

burden” to prove “severe emotional harm.” See McGarity, 429 S.W.3d at 578. Proving a 

likelihood of “severe emotional harm” requires “evidence to support a finding that the child 

is likely to suffer . . . harm that could reasonably be categorized as severe, grave, 

distressing, or extreme.” Id. at 579 (citing Severe, Black’s Law Dictionary (5th ed. 1979)). 

“The mere fact that a significant existing relationship exists will not suffice for a showing 

of substantial harm.” Huffman v. Huffman, No. E2012-02164-COA-R3-CV, 2013 WL

4715042, at *7 (Tenn. Ct. App. Aug. 30, 2013).

The phrases “severe emotional harm” and “substantial harm” are “not amenable to 

precise definition.” McGarity, 429 S.W.3d at 578 (quoting Ray v. Ray, 83 S.W.3d 726, 732 

(Tenn. Ct. App. 2001)). That said, using the modifier “substantial” suggests two things:

First, it connotes a real hazard or danger that is not minor, trivial, or 

insignificant. Second, it indicates that the harm must be more than a 

theoretical possibility. While the harm need not be inevitable, it must be 

sufficiently probable to prompt a reasonable person to believe that the harm 

will occur more likely than not.

Ray, 83 S.W.3d at 732 (footnote omitted).

In its final order, entered on January 8, 2021, the trial court acknowledged that the 

parties stipulated there was a significant existing relationship at the time Mother stopped 

the visitations between the Children and Grandfather, citing Tennessee Code Annotated

§36-6-106(a)(6). Based on the stipulation, the court found that Grandfather had standing 

under the statute to bring this Petition for Grandparent Visitation. The court then turned its 

focus on whether Grandfather had carried his burden of showing that cessation of that 

relationship is likely to result in “substantial harm” to the Children. In making that 

determination, based on three factors set out in Tennessee Code Annotated § 36-6-

306(b)(1) and as set out in Tennessee Code Annotated § 36-6-306(b)(2), the trial court 

made extensive findings of fact including the following.

The court found that Mother had lived with Grandfather on at least three separate 

occasions between December of 2018 and when Mother ceased any relationship with 

Grandfather, which was when she and the Children last left his home on October 15, 2019.

Significantly, the court found that Grandfather “offered no proof that the children at issue 

here had suffered or were suffering ‘substantial harm’ by being denied visitation with 

[Grandfather].” It also noted Joy C.’s testimony that when she saw Gracelyn at school in 

2020, Gracelyn appeared to be doing well. The court also credited Mother’s testimony that 

Gracelyn had not asked to visit Grandfather and that Gracelyn had stopped having 
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“nightmares” after they left Grandfather’s home. The trial court also found that at the time 

of the final hearing, neither grandchild had visited Grandfather’s home in 14 months.

After making these findings of fact, the trial court then focused on the “substantial 

harm” component, which the trial court recognized as “the threshold question in 

grandparent visitation cases,” citing McGarity v. Jerrolds, 429 S.W.3d 562, 570 (Tenn. Ct. 

App. 2013). The trial court also acknowledged that it must avoid the assumption that a 

“grandparent-grandchild relationship always benefits the grandchild.” See id. at 571. Based 

on these legal principles and the trial court’s findings of fact, the court concluded that 

Grandfather had not carried his burden of proof of “substantial harm” to the grandchildren 

resulting from Mother’s cessation of visits with Grandfather. For these reasons, the trial 

court denied the Petition for Grandparent Visitation.

After a thorough review of the record, we find the evidence does not preponderate 

against the trial court’s findings or the conclusion that Grandfather failed to prove that 

severance of his relationship with the Children would create a danger of substantial harm 

to them. Accordingly, we affirm the decision to deny the Petition for Grandparent 

Visitation.

II. CIVIL CONTEMPT

Grandfather contends that the trial court erred in finding that Mother did not 

willfully violate the Agreed Order that gave him temporary visitation with Gracelyn. We 

find this issue is moot.

“An issue becomes moot if an event occurring after the commencement of the case 

extinguishes the legal controversy attached to the issue, or otherwise prevents the 

prevailing party from receiving meaningful relief in the event of a favorable judgment[.]”

City of Memphis v. Hargett, 414 S.W.3d 88, 96 (Tenn. 2013). Grandfather’s Motion for 

Contempt asked the trial court for more visitation to compensate for the visitation he lost

when Mother refused to obey the Agreed Order. But the Agreed Order was only a 

temporary agreement for visitation pending the trial court’s decision at the final hearing.

This is significant because a civil contempt action is brought to enforce private rights. See 

State ex rel. Flowers, 209 S.W.3d at 613 (citing Black v. Blount, 938 S.W.2d 394, 398 

(Tenn. 1996)). After the final hearing, the trial court determined that Grandfather had no 

right to visitation. Thus, Grandfather had no private right to enforce. 

Because Grandfather no longer had any right to visitation after his petition was 

dismissed, this issue is pretermitted on the basis of mootness.

III. MODIFICATION OF AGREED ORDER

Besides arguing that the trial court erred in applying the Grandparent Visitation 

Statute, Plaintiff contends that the trial court erred by not applying the standard for 
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modification of a grandparent visitation order from Lovlace v. Copley, 418 S.W.3d 1 (Tenn. 

2013). We respectfully disagree that the Lovlace standard applies.

The dispute in Lovlace involved “competing petitions for modification and 

termination of previously court-ordered grandparent visitation.” Id. at 22. Because the 

Grandparent Visitation Statute does not address modification or termination, the Tennessee 

Supreme Court determined, as a matter of first impression, “the appropriate burdens of 

proof and standards to be applied.” Id. The Court adopted a two-part test:

First, a party petitioning for modification or termination must demonstrate 

by a preponderance of the evidence a material change in circumstances. If 

this showing is made, the party must next prove, by a preponderance of the 

evidence, that the requested modification or termination of visitation is in the 

best interests of the child.

Id. at 23.

Unlike Lovlace, this case involves an initial petition for grandparent visitation—not 

a petition to modify or terminate previously court-ordered visitation. The only courtordered visitation was the temporary visitation in the Agreed Order, which expired by its 

own terms at the final hearing. Thus, we find the Lovlace standard is inapplicable.

IN CONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded with costs 

of appeal assessed against the appellant, Melvin W.

________________________________

 FRANK G. CLEMENT JR., P.J., M.S.